Banwari Lal and others vs State of U.P.

Shri Kant Tripathi, J.—By this appeal the appellants Banwari Lal, Ram Singh, Chhote Lal @ Nepal and Tan Sukh have assailed their conviction and sentence recorded by Mr. V.K. Mishra. the Additional Sessions Judge, Court No. 10, Bareilly vide his judgment and order dated 26.2.2010 rendered in S.T. No. 1174 of 2007, State v. Banwari Lal and others, whereby the learned Additional Sessions Judge has convicted and sentenced each of the appellants to undergo rigorous imprisonment of four year, u/s 308/34, I.P.C.

The prosecution story in brief is that the appellant No. 4 Tan Sukh is the father of remaining three appellants Banwari Lal, Ram Singh and Chhote Lal @ Nepal. On 9.5.2006, at about 9.00 p.m., injured Man Singh and the appellants had participated in a marriage party in their own village. On account of an old enmity, the appellants assaulted the injured Man Singh with lathi, danda and blunt portion of farsa, consequently, the injured Man Singh sustained injuries and became unconscious. The appellant Tan Sukh had farsa and remaining appellants had blunt weapons. The witnesses Ram Chandra s/o Kalloo and Ram Chandra s/o Braj Lal arrived at the place of occurrence and witnessed the occurrence.

The complainant Munna Lal, the brother of the injured, lodged F.I.R. Exhibit Ka-4 at the police station Cantt. district Bareilly on 10.5.2006 at about 4.30 p.m. on which basis the police registered the case for investigation.

The police got the injured Man Singh medically examined by P.W.6 Dr. B. P. Bhardwaj, who found the following injuries :

(i) One lacerated wound 4 cm. x 0.5 cm. x scalp deep on left side head 6 cm. above left ear;

(ii) One lacerated wound 2 cm. x 0.5 cm. x scalp deep on right side head 7 cm. above right ear;

(iii) One A C 6 cm. x 4 cm. on outer aspect of left elbows;

(iv) One abrasion 2 cm. x 1 cm. on outer aspect of left knee;

(v) C/o pain on right side back of chest.

According to Dr. B. P. Bhardwaj, all the injuries were caused with blunt object and were old about 1/3 days. He had kept injury No. 5 under observation and advised for x-ray.

P.W. 4 Dr. A. K. Gupta, who was posted as Senior Radiologist in the Bareilly District Hospital did x-ray of the chest of the injured and found a fracture on right 7th and 8th ribs. According to the P.W. 4 Dr. A. K. Gupta these fractures were grievous in nature.

P.W. 5 Jalpal Singh investigated the matter and submitted charge-sheet against the appellants.

The learned trial court framed the charges u/s 308/34, I.P.C. against the appellants, who denied the charges and claimed to be tried.

The prosecution examined five witnesses in support of the aforesaid charges.

P.W. 1 Rakesh Kumar proved the chik report Exhibit Ka-1, relevant G.D. Entry Exhibit Ka-2 and letter for medical examination of the injured. Exhibit Ka-3. The evidence of this witness is of formal in nature.

P.W. 2 Munna Lal, the complainant has proved the original F.I.R. Exhibit Ka-4 and supported the prosecution story in the witness box. The learned trial court has found that this witness was not present at the time of the incident, therefore, his evidence was not relevant.

P.W. 3 Man Singh, the injured has supported the prosecution story in the witness box and very clearly stated that the appellant No. 4 Tan Sukh had a farsa and remaining three appellants had lathi. All of them assaulted him with their respective weapons. P.W. 3 Man Singh clarified during the cross-examination that blunt portion of the farsa was used by the appellant No. 4 Tan Sukh while assaulting him. Nothing material could be brought on record to discredit the testimony of P.W. 3 Man Singh.

P.W. 4 Dr. A. K. Gupta has proved the x-ray report, exhibit Ka-5 and x-ray plate, material exhibit -1.

P.W. 5 Senior Sub-Inspector Jaipal Singh is the Investigating Officer, who proved the site plan exhibit Ka-6 and charge-sheets exhibit Ka-7 and exhibit Ka-8.

P.W. 6 Dr. B. P. Bhardwaj proved the aforesaid injuries sustained by the injured Man Singh and also the injury report exhibit Ka-9 and supplementary injury report exhibit Ka-10.

The appellants were examined u/s 313. Cr. P.C. They set up the story that the injured was habitual heavy drinker and sustained injuries on falling to some hard object.

The learned trial court believed the prosecution story and held that the charge u/s 308/34. I.P.C. was proved beyond all reasonable doubts against the appellants.

I have heard the learned counsel for the appellants and the learned A.G.A. for the State and perused the records.

The prosecution case rests on the sole statement of P.W. 3 Man Singh. The independent witnesses named in the F.I.R. were not examined during the trial. The learned trial court itself held that P.W. 2 Munna Lal (the complainant) was not an eyewitness of the occurrence. In my opinion the statement of P.W. 3 Man Singh (the injured) has been rightly believed by the learned trial court, specially when his evidence was corroborated by the medical evidence given by P.W. 4 Dr. A. K. Gupta and P.W. 6 Dr. B. P. Bhardwaj. The statement of P.W. 3 Man Singh could not be shaken during the cross-examination and remained intact. Since he is the injured person, therefore, he was the best person to tell as to who were the authors of the injuries caused to him.

The learned counsel for the appellants very frankly conceded that the statement of P.W. 3 Man Singh duly corroborated by the medical evidence was believable and the learned trial court has not committed any error in placing reliance on the statement of P.W. 3 Man Singh. In this view of the matter, the learned counsel for the appellants raised only two points; firstly, that the offence u/s 308/34, I.P.C. was not made out and, secondly, the sentence of four years rigorous imprisonment was, in view of the facts and circumstances of the case, unreasonable.

With regard to the point No. 1, the learned counsel for the appellants submitted that there was no evidence to show that the injury was caused with such intention or knowledge and under such circumstances that if the Injured had died, the appellants would have been guilty of culpable homicide not amounting to murder. The learned counsel for the appellants further submitted that if the injured sustained fracture of 7th and 8th right ribs, it cannot be contended that the fractures would constitute the offence u/s 308, I.P.C. At most the fracture of the aforesaid ribs constitutes the offence u/s 325, I.P.C. only. Other injuries were simple and not in any way dangerous to life, therefore, those injuries too do not constitute any offence u/s 308, I.P.C. It was further submitted that if the appellants had any intention to kill the deceased or acted with that knowledge, they were in position to cause more injuries but they did not do so, therefore, the offence u/s 308, I.P.C. was not made out. In my opinion, the manner in which the occurrence took place, the nature of injuries sustained by the injured and other facts and circumstances of the case, do not justify conviction of the appellants u/s 308, I.P.C. The offence u/s 308, I.P.C. postulates doing of an act with such intention or knowledge and under such circumstances that if the accused by the act caused the death he would be guilty of culpable homicide not amounting to murder. In absence of such intention or knowledge, the question of holding the appellants guilty of the offence u/s 308, I.P.C. did not arise. It seems to be a case of mere assault with lathi and blunt portion of farsa, which resulted In causing simple and grievous injuries to the injured, therefore, the acts of the appellants make out the offences under Sections 325/34, I.P.C. and 323/34. I.P.C. only and as such the conviction of the appellants u/s 308, I.P.C. was not proper.

With regard to the quantum of sentence, the learned counsel for the appellants submitted that the appellants have no criminal background nor they were in any way dangerous to the society. The occurrence in question took place on account of personal dispute with the injured, therefore, the sentence of four years rigorous Imprisonment was not at all proper. In my opinion, this submission has sufficient merit.

Keeping In view the facts and the circumstances of the case, it seems to be just and expedient to convict and sentence the appellants under Sections 325/34, I.P.C. and 323/34, I.P.C.

The appeal is partly allowed. The conviction and sentence passed against the appellants u/s 308/34, I.P.C. are set aside. Each of the appellants Banwari Lal, Ram Singh. Chhote Lal @ Nepal and Tan Sukh is convicted and sentenced u/s 325/34. I.P.C. to undergo rigorous imprisonment of two years and to pay a fine of ( Rs. ) three thousand and in default of payment of fine to undergo additional rigorous imprisonment of three months. Each of them is further convicted and sentenced u/s 323/34, I.P.C. to pay a fine of ( Rs. ) one thousand and in default of payment of fine to undergo additional rigorous imprisonment of two months. Both the sentences shall run concurrently.

A sum of ( Rs. ) twelve thousand shall be paid to the injured as compensation from the fine to be recovered from the appellants.

Let the lower court record alongwith a copy of this judgment be transmitted forthwith to the trial court for compliance.